State v. Vitiello

• Decision Date: 15 May 1990
• Docket Number: No. WD,WD
• Citation: 791 S.W.2d 837
• Parties: STATE of Missouri, Respondent, v. Richard VITIELLO, Appellant. 41115.
• Court: Missouri Court of Appeals

Page 837

791 S.W.2d 837

STATE of Missouri, Respondent, v. Richard VITIELLO, Appellant.

No. WD 41115.

Missouri Court of Appeals Western District.

May 15, 1990.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 3, 1990.

Donald L. Catlett, Asst. Public Defender, Columbia, for appellant.

William L. Webster, Atty. Gen., Frank A. Jung, Asst. Atty. Gen., Jefferson City, for respondent.

Before NUGENT, C.J., FENNER, J., and WASSERSTROM, Senior Judge.

FENNER, Judge.

In this consolidated appeal, appellant Richard Vitiello appeals from his convictions, following a jury trial, of first degree burglary and kidnapping and appeals the denial, after an evidentiary hearing, of his motion for post-conviction relief pursuant to Rule 29.15.

The evidence adduced at trial, viewed in the light most favorable to the verdict is as follows:

Vitiello and Wendy Sargent lived together for about one and one-half years. They were never married. During this time a daughter, Jennifer, was born to Sargent and Vitiello. Around August, 1987, the relationship ended and Jennifer remained with Sargent.

On March 26, 1988, sometime in the early morning hours between 2:00 and 2:30 a.m., Sargent was awakened by her sister, Rhonda Scott, who was staying with Sargent for the weekend. Scott told Sargent that someone was peeking in the back window. Also present were Scott's two friends, Rob Smith and Michelle Kribbs. Sargent went to investigate and saw Vitiello looking through the front door windows. Vitiello wanted to come in to see Jennifer and to speak to Sargent, but Sargent refused, telling him it was late and that she had to go to work the next morning. When Vitiello refused to leave, Sargent told Robert Smith to go out the back door and to call the police.

In the meantime, Sargent talked with Vitiello through the front door, trying to get him to leave. The police arrived and an officer talked to Vitiello, then both Vitiello and the officer drove away.

Vitiello soon returned after the police left and again tried to enter the residence. Sargent, Scott, Smith and Kribbs were standing in the living room and heard a loud noise at the back door. Vitiello gained forcible entry through the back door near the laundry room and entered the living room. He told Sargent he wanted to talk to her alone and to see the baby. If she refused, Vitiello told Sargent he would take Jennifer and leave.

Sargent eventually agreed to talk to Vitiello alone and the two talked in the kitchen. Vitiello told Sargent that he wanted a reconciliation and tried to get her to sign an agreement regarding Jennifer. He also told Sargent that if anyone tried to leave to call the police, he would take Jennifer and Sargent would never see her again. Vitiello next told Sargent that he would leave and never bother her again if she would let him hold Jennifer.

Scott went upstairs and brought Jennifer down and Vitiello was allowed to hold Jennifer for a short time. Scott then took the child back from Vitiello and Sargent proceeded to the front door, opened it and asked Vitiello to leave. Vitiello wanted to hold Jennifer again and tried to get Sargent to sign a custody agreement. As they were all standing at the front door, Vitiello grabbed Jennifer from Sargent and carried her out the front door to his car. He put the child in the front seat, got in himself and drove away.

Sargent contacted the police and later that day received a call from Vitiello telling her that he was at his mother's home in Wright City. Vitiello told Sargent to come to his mother's home if she wanted to see Jennifer and also that she would not get Jennifer back unless she agreed to marry him.

Vitiello called the Sheriff's Department and asked a Deputy Jenkins if there was a warrant for his arrest. He told Jenkins that Jennifer would never be seen again if the police became involved.

Vitiello next contacted a Detective Anderson and told him that he had the baby and if Sargent would meet with him she could have the baby back. He told Anderson that so long as the police were not involved there would be no problems. Pursuant to Anderson's directions, Sargent called Vitiello's mother and asked if she would find her daughter. Vitiello's mother told Sargent she did not know where Vitiello was, but would try to find him if Sargent would call back from a pay phone.

Arrangements were made by Anderson to set up a trace on a pay phone in the Boone County Courthouse. Sargent called Vitiello's mother from that telephone at about 12:12 a.m., on March 27 and left the number to the pay phone. A short time later Vitiello called Sargent and let her speak with Jennifer. Sargent was on the line until 2:20 a.m. The call was traced to a number in Wright City and Vitiello was later arrested at the address given police by the telephone company.

Vitiello was returned to Boone County where he was tried by a jury and found guilty of first degree burglary and kidnapping. He was sentenced as a prior offender to concurrent terms of five and seven years' imprisonment. Notice of appeal was timely filed with this court.

Subsequently, Vitiello filed a pro se motion pursuant to Rule 29.15. Following an evidentiary hearing the Rule 29.15 motion was denied.

Vitiello presents three points on appeal, the first of which alleges that the trial court erred in denying his motion for judgment of acquittal on the burglary charge because the evidence was insufficient to establish that he remained in Sargent's residence unlawfully with the purpose of committing the crime of kidnapping.

The crime of burglary in the first degree is committed if a person knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein and during that time, there is another...